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June 18, 1999
Co-Chair, ACCSH Multi-Employer Workgroup
OSHA, US DOL
101 Constitution Avenue, NW
Washington, DC 20150
Re: Comments from National Safety Council Construction Division on Multi-Employer Worksite policy draft date June 1999
Dear Co-chairman Devora:
Please share the following comments with your Co-Chair Evans and with your workgroup. The comments were generated by response to a broadcast fax sent to 200 construction industry members by the National Safety Council Construction Division. Responses include everything received up to my departure for Washington on June 7th. Several comments are set out next to the paragraphs affected. Additional comments are distilled and listed at the end of the draft text. Any additional responses will be forwarded to you as they arrive.
C.6. Multi-Employer Worksite: A worksite at which two or more entities are performing tasks that will contribute to the completion of a common project. The entities may or may not be related contractually. The contractual relationship may or not be in wiring. On multi-employer worksites, both in construction and industry, more than one employer may be citable for the same condition. The following employers are potentially citable.
- The Exposing Employer: An employer whose own employees are exposed to the hazard.
- The exposing employer must protect its employees from the hazard if the employer has the authority to correct the hazard, it is citable if it failed to exercise the reasonable care to correct it. The reasonable care standard for the exposing employer is very high; it must be frequently and carefully inspected to prevent hazards and must correct hazards found promptly.
Richard Hislop, National Safety Council Construction Division Member: has concerns that the "reasonable care standard" needs further development. What does high mean and how is it measured?
Safety Management Services (per J. Robert Harrell) suggest the last sequence (it must…found promptly) should read. The exposing employer must frequently and carefully inspect to prevent hazards and must promptly correct hazards found during frequent and careful inspections.
- If the exposing employer lacks the authority to correct the hazard, it is citable if it fails to take all feasible measures to minimize its employees' exposure to the hazard and ask the controlling employer or manager to get the hazard corrected in extreme circumstances (e.g. imminent danger situations) the exposing employer is citable for failing to remove its employees from the job to avoid the hazard.
- The Creating Employer: The employer who created the hazard.
The employer who created the hazard should always be held responsible to correct the hazard. Even if they call someone else to correct the hazard they should be responsible.
-- Richard Senders Willis Corroon.
Example: A contractor hoisting materials onto a floor damages perimeter guardrails. None of its own employees are exposed to the hazard, but employees of other contractors are exposed.
Analysis: The creating employer is citable if it failed to take immediate steps to keep all employees, including those of other employees, away from the hazard and to notify the controlling employer or manager of the hazard. It is had the authority to repair the guardrails, it is also citable if it failed to promptly correct the hazard.
Need to make it clear that creating employer is responsible for the hazard until it is abated. Notification should not relieve responsibility. Must keep employees away. Marc Mumby Colorado Carpenters JATC.
- The Correcting Employer: an employer who is responsible for correcting a hazard.
Example: A carpentry contractor is hired to erect and maintain guardrails throughout a project. None of its own employees are exposed to the hazard but the employees are exposed where guardrails are missing or damaged.
Analysis: The correcting employer is citable if it failed to exercise reasonable care in its efforts to install and repair guardrails and to discover missing or damaged guardrails.
Note: Exposing, creating and controlling employer or manager can also be correcting employer if they are authorized to correct the hazard.
- The Controlling Employer or Manager: An employer or manager who by contractual right or a combination of other rights has the authority to manage the exposing, creating or correcting employer. To be citable as a controlling employer or manager it must have failed to exercise its responsibility to prevent, discover or correct a hazard.
Morley Brickman & Associates, LTD (per Morley Brickman) suggests that we spend time refining the concept of controlling employer. He suggests that we only concentrate on the contractual relationships and the employer employee links. He finds it completely out of order to cite absent those two criteria and is worried this will lead the way to a from of strict liability. He is in favor of scaled responsibility and likes other three categories as they are.
- Contractual Control
Christine Trahan, Center to Protect Workers Rights finds this structure confusing and suggest that e and its contents be relocated as subparts of d) so that it is clear they only apply to controlling employer discussion.
- By a Specific Contract Right to Control Safety: To be a controlling employer or manger it must be able to require other employers to prevent or correct as violation. The source of this ability is contract authority. This can take the form of a specific contract right to require an employer to adhere to safety and health requirements.
Care should be taken when drafting this paragraph that is does not motivate general contractors to simply take express safety control language from their contracts to avoid multi-employer citations – Richard Sanders Willis Corroon
Richard Hislop National Safety Council Construction Division Member has concerns about the inappropriate use of "violative condition or action and cautions that OSHA not employers should not be mistaken for OSHA. OSHA finds violations and issues citations.
Example: A general contractor or construction manager holds a contract with an owner to build a project and to provide all construction services including administration of all subcontracts along with the specific contract responsibility to exercise reasonable care to prevent, discover or correct a hazard.
Analysis: The reasonable care standard is still higher with each employer on the job, which may expose its workers to a hazard. If there is a contractual relationship with a provision to identify, prevent or order corrective action and reasonable care to do so cannot be established a violation may be issued to the general contractor or construction manager as an exposing contractor.
- By a Comination of Other Rights: Where there is not specific contract right to coordinate safety or where the contract says the employer does NOT have such a right an employer may still be a controlling contractor or manager. Its ability to control or manage safety in this circumstance can result from a combination of contractual rights that, together, give it broad responsibilities at the site involving almost all aspects of the job including aspects that affect safety.
Keep this section strong to avoid giving loopholes to unscrupulous Marc Mumby
Example: A large project with several prime contractors contracted to build different phases of the job could each become controlling contractors in the process of completing their part of the project. A prime contractor in charge of steel erection coordinates their erection sequence with the prime in charge of concrete placement but has no specific rights to coordinate safety of the prime contractor placing the concrete.
Analysis: In construction, some of the contractual rights that typically combine to result in this authority include: the right to set schedules and construction sequencing, require contract specifications to be met, negotiate with trades, decisions that effect safety. Where the combination of rights results in the ability of the employer to direct actions relating to safety, the employer is considered a controlling employer or manager. Where this combination of rights does not exist, then citations will not be issued other than for exposure to employees.
Richard Hislop, National Safety Council Construction Division Member suggests the following rewrite:
analysis: in construction some contractual responsibilities such as defining schedules, defining sequence of work or assuring that contract specifications must be made with consideration to the safety of workers. These decisions may affects the employer's own employees or those of other employers. Where the combination of contractual responsibilities results in an employer directing the actions of theirs in matter related to safety, the employer is considered to be a controlling employer or manager. Where this combination of rights does not exist, then citations will not be issued other than for the exposure of employees.
Elbe Watkins, Fru Con: voices concert that the effect of this paragraph may be a disincentive to Primes, General Contractors, Construction Managers to provide strong safety oversight.
- Responsibility to Control Work Without Contractual Authority; An employer can still be a controlling contractor or manager if, in actual practice it exercises control and or management authority between subcontractors at the site. However when authority to control and/or manage work between subcontractors in unclear, before issuing a citation the CSHO will consult the Regional Solicitor's office.
AON (per John Langford, Regional VP) urges that ACCSH clarify the whether the property owner be the controlling contractor and if so, then shouldn't the proposal say so clearly.
Christine Trahan, Center to Protect Workers Rights suggests that we need to insert examples showing when and how an employer would fall under this paragraph. We need an inclusive example. It is more efficient than a list of exclusive cases.
Example: A construction manager does not hold the contracts for construction work and provides oversight of the project but holds no authority to direct work. Site inspections are done periodically to determine progress of the work with all reports presented to the property owner who holds all construction contracts. All observed safety violations are reported to the property owner who is the sole entity empowered to affect corrective action. The construction manager is not the controlling employer in this example and will not be cited other than for exposed employees.
Owner should become the controlling contractor in this example – Marc Mumby Richard Hislop, National Safety Council Construction Division Member, suggests that the example start with the following language:
A construction manager who provides project oversight, but who does not hold the contracts for construction work…..
Analysis: The construction manager did not have any contractual authority over the exposing employer and did not have the power to order corrective action. The reasonable care standard was met to inspect and provide recommendations to the appropriate authority. No citation would be given.
- Reasonable care: Knowledge, identification, authority, and expertise to take corrective action.
Example: A general contractor hires and electrical subcontractor. The electrical subcontractor installs an electrical panel box exposed to the weather and implements an assured equipment-grounding conductor program, as required under the contract. It fails to connect a grounding wire inside the box to one of the outlets. This incomplete ground is not apparent from a visual inspection. The general contractor inspects the site twice a week. It saw the panel box but did not test the outlets to determine if they were all grounded because the electrical contractor represents that it is doing all the required tests on all receptacles. The general contractor knows that the subcontractor has a good safety program from previous experience. It also knows that the subcontractor is familiar with the applicable safety requirements and is technically competent. It has asked the subcontractor if the electrical equipment is OK for use and was assured that it is.
- A controlling employer or manager will be cited if it failed to exercise reasonable care in preventing or correcting a violation.
Richard Hislop National Safety Council Construction Division Member suggests this should read:
A controlling employer or manager may be cited where it fails to exercise reasonable care in preventing or correcting a violative condition or action.
He renews his complaint that reasonable care needs more criteria and that OSHA not the employer or manager finds violations and issues citations (see his comment at 6.e.1.). Overall he likes the idea and wants to be involved in future discussions.
- The reasonable care standard for a controlling employer or manager is not as high as it is for exposing, creating or correcting employers,
- This means the controlling employer or manager is not normally required to inspect as frequently or to have the same level of knowledge of the applicable standards of trade expertise as the subcontractor.
- Factors that affect how frequently and closely a controlling employer or manager must inspect to meet its standard of reasonable care include the scale of the project, the nature of the work, how much the contractor knows about both the safety history and safety practices of the subcontractor and about the subcontractor's level of expertise.
Need to strengthen the example. In real life the sub should have a log certifying the testing of each outlet – Marc Mumby.
Analysis: The general contractor exercise reasonable care. It has determined that the subcontractor has technical expertise, safety knowledge and used safe work practices. Is also makes some basic inquiries into the safety of the electrical equipment. Under these circumstances it was not obligated to test the outlets itself to determine if they were all grounded. It would not be citable for grounding violation.
- A checklist for examining reasonable care:
- Did the coordinating entity have knowledge of the hazard or violation of the creating or exposing employer?
- Is there evidence of an effective safety and health program in place for this site?
- Is there a system in place for identifying and correcting hazards for this site?
- Is there any indication of regular jobsite safety meetings and or safety training?
- Does the creating or exposing employer have a previous history of similar violations, and are steps being taken to identify and correct these situations?
National Utility Contractors Association members (per George Kennedy)
"Believe every contractor (employer) at a jobsite should be responsible for the safety of his/her employees and compliance with OSHA standards. Employers who expose workers to hazards should be cited; employers who created hazards that expose their employees or other workers to hazards should be cited; and employees who have been assigned the responsibility for correcting hazards and do not should be cited."
National Utility Contractors Association members (per George Kennedy)
"Oppose the concept of citing the "controlling" contractor (CC) for subcontractor violations of OSHA standards. NUCA members believe that sections C.6.d. and e. are overboard and unfairly extend liability beyond any anticipated contractual obligations.
Fletcher Pacific (per Tracy Lawson) has concerns that this draft
begins the slippery slope to far greater and cumbersome regulations in multi-employer scenarios. The worry is that guidelines will someday become increasingly used by CSHO's to excess. Express suggestions include using terms "due diligence instead of reasonable care" and using "in a timely manner instead of immediately".
Southern Illinois Builders Association (AGC of America) (per James R. Andrews, CSP – Safety Consultant on OSH to SIBA) is against the whole discussion and sees this effort as serving the will of lawyers, judges and other bureaucrats to erode our constitutional system.
"The fact is that lawyers, judges and other bureaucrats value far more highly the power and influence which they have managed to acquire by other means – by enlisting the aid of other well intentioned groups who naively succumb to the please of 'reasonableness' and support the bastardly efforts to 'make law'. There can be little doubt that the Advisory Committee on Construction Safety and Health is perhaps inadvertently aiding in such efforts by participation in the Multi-Employer Workgroup deliberations."
"Tell them (ACCSH) to seek the aid of their elected lawmakers in Congress!!"
Southern Illinois Builders Association (AGC of America)(per Tim Garvey – Director of SICAP Programs and Garland Whitworth – Director of Safety and Education
"… we have doubts concerning the equity and function of C.6.E. of your draft. The rest of the draft proposal seems logically compiled and the checklist for examining reasonable care could prove to be helpful.
However, we feel compelled to bring your attention an irrefutable fact: OSHA's multi-employer citation policy always has been, and continues to stand as a contradiction to Public Law 91-596, the Williams-Steiger Occupational Safety and Health Act (aka OSH act)…[which] mandates that the employer-employee relationship serve as the strictly limited basis for occupational safety and health responsibilities... We firmly believe that your sincere efforts to make this policy workable would be better served by urging OSHA to recognize the intent of the law that originally created the agency.
AON (per Dave Langton, Senior VP, submitted directly to Mr. Devora) remove the concept of Controlling Employer from draft. It is very difficult to determine; OSH Act is premised on employer/employee relationship, which is missing in Controlling Employer/Manager Scenario. "Reasonable Care Standard" should be revised. It is impossible for CSHOs to apply this term equally."
T.A. Loving Company (per Linwood Smith, VP) "Reasonable Care Standard is an excellent attempt to clarify conclusion. Please add another example explaining what areas general contractors and construction managers are responsible for inspecting. Please continue to minimize "controlling," which is ambiguous at best."
Safety Management Systems (per J. Robert Harrell) suggests that the ACCSH conform its multi-employer standard to that of ANSI
Francine Howell NSC Construction Division Manager suggests that the checklist for examining reasonable care include written site-specific safety plan as part of the contractual relationships.
Morley Brickman & Associates, Ltd. (per Morley Brickman) suggest we need to address recommendations regarding the controlling employer.
Barton Malow (per John Gleichman Director of Safety and Loss Control and Thomas Porter – VP and General Counsel) see attached fax/letter dated June 7,1999 from Barton Malow to Michael Buchet.
ZCON, Inc. (per Ingo Zeise) see attached fax dated June 3,1999 from ZCON Inc. to Michael Buchet.
Michael MX Buchet
National Safety Council Construction Division